Paul is correct. I also must take issue with Greg. The construction of the by law so as to restrict ICANN to only respect human rights where an applicable DOMESTIC law requires it to, is wrong, and is the exact reason I argued, in the minority, against the phrase. There is no applicable law,, for example, that protects individuals and organisations against breaches of their right to free expression. If there is, tell me what it is, and where I can read and construe it. In particular, please tell me the section of that law that makes it applicable to a private company that no longer has any formal connection to the US Government. On 27/09/16 21:05, Paul Rosenzweig wrote:
I guess you folks leave me confused. Certainly, all human rights are due to be respected. But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN? There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no? Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant?
Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others? Or is that really so controversial a statement that it can't be made?
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Daniel Appelman Sent: Tuesday, September 27, 2016 2:59 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
Thanks for your thoughts, Anne. I never advocated excluding any human rights from the framework, of course. But none of the comments thus far have convinced me that they are all equally relevant for ICANN.
-----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 11:53 AM To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne
Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________
Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com
-----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting.
I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.)
As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point.
Anne
Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________
Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’.
Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’.
(The ‘also’ refers to the commitments in section 1.2)
-Bastiaan
On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:
You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."
On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.
From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
A response on Erich's last point:
WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.
This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such) they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.
It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.
You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.
We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's co! mmitment i s limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.
Greg
On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:
My clarifications „inline“. Sorry for quick drafting and being unclear.
Erich Schweighofer
Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
I agree in part and disagree in part:
On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:
...
The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.
I tend to agree with this.
The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.
I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.
Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.
ICANN is inclusive, e.g. also flexible.
Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation.
It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.
WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.
This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such) they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.
It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.
You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.
In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.
An "ethical code of ICANN" is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.
It is good to work on an idealistic world but we have to realistic, too.
That I can agree with.
Best, Erich Schweighofer
Greg
-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
Dear all,
Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.
Comments and suggestions are welcome.
1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB
Best,
Niels
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
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